DOT 49 CFR PART 835-2010 TESTIMONY OF BOARD EMPLOYEES.pdf

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1、607 National Transportation Safety Board 835.3 and/or proposed safety recommenda-tions designed to prevent future acci-dents. (b) Timing of submissions. To be con-sidered, these submissions must be re-ceived before the matter is calendared for consideration at a Board meeting. All written submission

2、s are expected to have been presented to staff in advance of the formal scheduling of the meet-ing. This procedure ensures orderly and thorough consideration of all views. (c) Exception. This limitation does not apply to safety enforcement cases handled by the Board pursuant to part 821 of this chap

3、ter. Separate ex parte rules, at part 821, subpart J, apply to those proceedings. 62 FR 3808, Jan. 27, 1997 PART 835TESTIMONY OF BOARD EMPLOYEES Sec. 835.1 Purpose. 835.2 Definitions. 835.3 Scope of permissible testimony. 835.4 Use of reports. 835.5 Manner in which testimony is given in civil litiga

4、tion. 835.6 Request for testimony in civil litiga-tion. 835.7 Testimony of former Board employees. 835.8 Testimony by current Board employ-ees regarding prior activity. 835.9 Procedure in the event of a subpoena in civil litigation. 835.10 Testimony in Federal, State, or local criminal investigation

5、s and other pro-ceedings. 835.11 Obtaining Board accident reports, factual accident reports, and supporting information. AUTHORITY: 5 U.S.C. 301; Independent Safe-ty Board Act of 1974, as amended (49 U.S.C. 1101 et seq.). 835.1 Purpose. This part prescribes policies and pro-cedures regarding the tes

6、timony of em-ployees of the National Transportation Safety Board (Board) in suits or ac-tions for damages and criminal pro-ceedings arising out of transportation accidents when such testimony is in an official capacity and arises out of or is related to accident investigation. The purpose of this pa

7、rt is to ensure that the time of Board employees is used only for official purposes, to avoid em-broiling the Board in controversial issues that are not related to its du-ties, to avoid spending public funds for non-Board purposes, to preserve the impartiality of the Board, and to pro-hibit the disc

8、overy of opinion testi-mony. 63 FR 71607, Dec. 29, 1998 835.2 Definitions. Accident, for purposes of this part in-cludes incident. Board accident report means the re-port containing the Boards determina-tions, including the probable cause of an accident, issued either as a nar-rative report or in a

9、computer format (briefs of accidents). Pursuant to section 701(e) of the Federal Aviation Act of 1958 (FA Act), and section 304(c) of the Independent Safety Board Act of 1974 (49 U.S.C. 1154(b) (Safety Act), no part of a Board accident report may be admitted as evidence or used in any suit or action

10、 for damages growing out of any matter mentioned in such re-ports. Factual accident report means the re-port containing the results of the in-vestigators investigation of the acci-dent. The Board does not object to, and there is no statutory bar to, admission in litigation of factual accident re-por

11、ts. In the case of a major investiga-tion, group chairman factual reports are factual accident reports. 63 FR 71607, Dec. 29, 1998, as amended at 64 FR 5622, Feb. 4, 1999 835.3 Scope of permissible testimony. (a) Section 701(e) of the FA Act and section 304(c) of the Safety Act pre-clude the use or

12、admission into evi-dence of Board accident reports in any suit or action for damages arising from accidents. These sections reflect Con-gress strong * * * desire to keep the Board free of the entanglement of such suits. Rep. No. 931192, 93d Cong., 2d Sess., 44 (1974), and serve to ensure that the Bo

13、ard does not exert an undue in-fluence on litigation. The purposes of these sections would be defeated if ex-pert opinion testimony of Board em-ployees, which may be reflected in the views of the Board expressed in its re-ports, were admitted in evidence or VerDate Mar2010 10:10 Dec 13, 2010 Jkt 220

14、218 PO 00000 Frm 00617 Fmt 8010 Sfmt 8010 Y:SGML220218.XXX 220218wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-608 49 CFR Ch. VIII (10110 Edition) 835.4 used in litigation arising out of an ac-cident. The Board rel

15、ies heavily upon its investigators opinions in its delib-erations. Furthermore, the use of Board employees as experts to give opinion testimony would impose a sig-nificant administrative burden on the Boards investigative staff. Litigants must obtain their expert witnesses from other sources. (b) Fo

16、r the reasons stated in para-graph (a) of this section and 835.1, Board employees may only testify as to the factual information they obtained during the course of an investigation, including factual evaluations embodied in their factual accident reports. How-ever, they shall decline to testify re-g

17、arding matters beyond the scope of their investigation, and they shall not give any expert or opinion testimony. (c) Board employees may testify about the firsthand information they obtained during an investigation that is not reasonably available elsewhere, including observations recorded in their

18、own factual accident reports. Consistent with the principles cited in 835.1 and this section, current Board employees are not authorized to testify regarding other employees reports, or other types of Board documents, in-cluding but not limited to safety rec-ommendations, safety studies, safety prop

19、osals, safety accomplishments, re-ports labeled studies, and analysis re-ports, as they contain staff analysis and/or Board conclusions. (d) Briefs of accidents may be re-leased in conjunction with factual acci-dent reports. Nevertheless, they are not part of those reports and are not to be admitted

20、 in evidence or used in a deposition approved under this part. (e) Not all material in a factual acci-dent report may be the subject of testi-mony. The purpose of the factual acci-dent report, in great part, is to inform the public at large, and as a result the factual accident report may contain in

21、-formation and conclusions for which testimony is prohibited by this part. (f) No employee may testify in any matter absent advance approval by the General Counsel as provided in this part. 55 FR 41541, Oct. 12, 1990, as amended at 63 FR 71607, Dec. 29, 1998; 64 FR 5622, Feb. 4, 1999 835.4 Use of re

22、ports. (a) As a testimonial aid and to re-fresh their memories, Board employees may use copies of the factual accident report they prepared, and may refer to and cite from that report during testi-mony. (b) Consistent with section 701(e) of the FA Act and section 304(c) of the Safety Act, a Board em

23、ployee may not use the Boards accident report for any purpose during his testimony. 55 FR 41541, Oct. 12, 1990, as amended at 63 FR 71607, Dec. 29, 1998 835.5 Manner in which testimony is given in civil litigation. (a) Testimony of Board employees with unique, firsthand information may be made avail

24、able for use in civil actions or civil suits for damages aris-ing out of accidents through deposi-tions or written interrogatories. Board employees are not permitted to appear and testify in court in such actions. (b) Normally, depositions will be taken and interrogatories answered at the Boards off

25、ice to which the em-ployee is assigned, and at a time ar-ranged with the employee reasonably fixed to avoid substantial interference with the performance of his duties. (c) Board employees are authorized to testify only once in connection with any investigation they have made of an accident. Consequ

26、ently, when more than one civil lawsuit arises as a result of an accident, it shall be the duty of counsel seeking the employees deposi-tion to ascertain the identity of all parties to the multiple lawsuits and their counsel, and to advise them of the fact that a deposition has been granted, so that

27、 all interested parties may be afforded the opportunity to participate therein. (d) Upon completion of the deposition of a Board employee, the original of the transcript will be provided the de-ponent for signature and correction, which the Board does not waive. A copy of the transcript of the testi

28、mony and any videotape shall be furnished, at the expense of the party requesting the deposition, to the Boards General VerDate Mar2010 10:10 Dec 13, 2010 Jkt 220218 PO 00000 Frm 00618 Fmt 8010 Sfmt 8010 Y:SGML220218.XXX 220218wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reprodu

29、ction or networking permitted without license from IHS-,-,-609 National Transportation Safety Board 835.10 Counsel at Washington, DC head-quarters for the Boards files. 55 FR 41541, Oct. 12, 1990, as amended at 63 FR 71607, Dec. 29, 1998 835.6 Request for testimony in civil litigation. (a) A written

30、 request for testimony by deposition or interrogatories of a Board employee relating to an accident shall be addressed to the General Coun-sel, who may approve or deny the re-quest consistent with this part. Such request shall set forth the title of the civil case, the court, the type of acci-dent (

31、aviation, railroad, etc.), the date and place of the accident, the reasons for desiring the testimony, and a show-ing that the information desired is not reasonably available from other sources. (b) Where testimony is sought in con-nection with civil litigation, the Gen-eral Counsel shall not approv

32、e it until the factual accident report is issued (i.e., in the public docket). In the case of major accident investigations where there are multiple factual reports issued and testimony of group chair-men is sought, the General Counsel may approve depositions regarding completed group factual report

33、s at any time after incorporation of the report in the public docket. However, no depo-sition will be approved prior to the Boards public hearing, where one is scheduled or contemplated. The Gen-eral Counsel may approve a deposition in the absence of a factual accident re-port when such a report wil

34、l not be issued but all staff fact-finding is com-plete. (c) The General Counsel shall attach to the approval of any deposition such reasonable conditions as may be deemed appropriate in order that the testimony will be consistent with 835.1, will be limited to the matters delineated in 835.3, will

35、not interfere with the performance of the duties of the employee as set forth in 835.5, and will otherwise conform to the policies of this part. (d) A subpoena shall not be served upon a Board employee in connection with the taking of a deposition in civil litigation. 63 FR 71607, Dec. 29, 1998 835.

36、7 Testimony of former Board em-ployees. It is not necessary to request Board approval for testimony of a former Board employee, nor is testimony lim-ited to depositions. However, the scope of permissible testimony continues to be constrained by all the limitations set forth in 835.3 and 835.4. 63 FR

37、 71608, Dec. 29, 1998 835.8 Testimony by current Board employees regarding prior activity. Any testimony regarding any acci-dent within the Boards jurisdiction, or any expert testimony arising from em-ployment prior to Board service is pro-hibited absent approval by the General Counsel. Approval sha

38、ll only be given if testimony will not violate 835.1 and 835.3, and is subject to whatever con-ditions the General Counsel finds nec-essary to promote the purposes of this part as set forth in 835.1 and 835.3. 63 FR 71608, Dec. 29, 1998 835.9 Procedure in the event of a subpoena in civil litigation.

39、 (a) If the Board employee has re-ceived a subpoena to appear and testify in connection with civil litigation, a request for his deposition shall not be approved until the subpoena has been withdrawn. (b) Upon receipt of a subpoena, the employee shall immediately notify the General Counsel and provi

40、de all infor-mation requested by the General Coun-sel. (c) The General Counsel shall deter-mine the course of action to be taken and will so advise the employee. 63 FR 71608, Dec. 29, 1998 835.10 Testimony in Federal, State, or local criminal investigations and other proceedings. (a) As with civil l

41、itigation, the Board prefers that testimony be taken by deposition if court rules permit, and that testimony await the issuance of the factual accident report. The Board recognizes, however, that in the case of coroners inquests and grand jury pro-ceedings this may not be possible. The Board encoura

42、ges those seeking testi-mony of Board employees to contact the General Counsel as soon as such VerDate Mar2010 10:10 Dec 13, 2010 Jkt 220218 PO 00000 Frm 00619 Fmt 8010 Sfmt 8010 Y:SGML220218.XXX 220218wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permi

43、tted without license from IHS-,-,-610 49 CFR Ch. VIII (10110 Edition) 835.11 testimony is being considered. When-ever the intent to seek such testimony is communicated to the employee, he shall immediately notify the General Counsel. (b) In any case, Board employees are prohibited from testifying in

44、 any civil, criminal, or other matter, either in person or by deposition or interrog-atories, absent advance approval of the General Counsel. The Board discour-ages the serving of a subpoena for tes-timony but, if issued, it should be served on the General Counsel, rather than the employee. (c) If p

45、ermission to testify by deposi-tion or in person is granted, testimony shall be limited as set forth in 835.3. Only factual testimony is authorized; no expert or opinion testimony shall be given. 63 FR 71608, Dec. 29, 1998 835.11 Obtaining Board accident re-ports, factual accident reports, and suppo

46、rting information. It is the responsibility of the indi-vidual requesting testimony to obtain desired documents. There are a number of ways to obtain Board accident re-ports, factual accident reports, and ac-companying accident docket files. Our rules at parts 801 and 837 of this chap-ter explain ou

47、r procedures, as will our web site, at www.ntsb.gov. Or, you may call our Public Inquiries Branch, at (800) 8776799. Documents will not be supplied by witnesses at depositions, nor will copying services be provided by deponents. 63 FR 71608, Dec. 29, 1998 PART 837PRODUCTION OF RECORDS IN LEGAL PROCE

48、EDINGS Sec. 837.1 Purpose and scope. 837.2 Applicability. 837.3 Published reports, material contained in the public accident investigation dockets, and accident database data. 837.4 Other material. AUTHORITY: 49 U.S.C. 1101 et seq.; 40101 et seq.; 5 U.S.C. 301. SOURCE: 62 FR 27703, May 21, 1997, unl

49、ess otherwise noted. 837.1 Purpose and scope. (a) This part sets forth procedures to be followed when requesting material for use in legal proceedings (including administrative proceedings) in which the National Transportation Safety Board (NTSB or Board) is not a party, and procedures to be followed by the employee upon receipt of a subpoena, order, or other demand (collectively re-ferred to here as